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Friday, 15 August 2008

Chiefs and the Law in Independent Zambia

The last post in this series on traditional authorities discussed how chiefs adapted to new found responsibilities, carefully balancing the requirements of the Colonial State with the expectations of the rural populace. In the process, it was argued that beyond these requirements, Chiefs also leveraged their influence, assisted by by the vast wealth of native treasuries, to support the political struggle and development of rural entrepreneurship. With the advent of independence, the political spectrum was soon to be shattered. This post explores the processes that led to that change, and; how the authority of chiefs was altered. In particular, it focuses on the key institutional changes that have emerged since independence, and the extent to which they have shaped the role of chieftaincy in modern Zambia.

The emergency of Zambia in 1964 marked a momentous occasion of political emancipation from both Britain and the white supremacies. Zambia was now an independent political state able to determine its place in the world. However, as many have noted, in many respects this was only the beginning of the struggle for true self determination. The real struggle that lay ahead for her government was how to turn the achieved political independence into true internal cohesion and viable economic independence in the long term. Zambia of course is not unique in this respect. All new nations strive to be economically independent and ensure that they manage any external pressures that threaten internal cohesion. But in Zambia this problem was particularly acute, for two reasons:

  • First, the country’s economy was quite exceptionally dependent on copper, which placed Zambia’s economy at the mercy of unpredictable world demand for copper. Moreover, under colonial rule the country had had little stake in, let alone control over the mining industry – mining was essentially a foreign business (and many would argue that it still is). But what made the situation even worse was the fact that at independence, Zambia had to rely on Rhodesia, South Africa or Mozambique for nearly all communication with the outside world, for much of its trade, for skilled manpower and for employment of its citizens. This dependence on the white supremacies presented a significant challenge to Zambia’s political independence.
  • Secondly, at independence the nation emerged with deep regional divisions, often reflected in different political bases for the competing parties of UNIP and ANC. In addition to this cultural diversity, the Zambian government inherited a very unequal society, with the copperbelt dwellers more well off than their rural counterparts. This aggravated the regional rivalries or “tribalism” during and after independence. There was thus considerable scope for hostile foreign powers to exploit internal disaffection for their own ends.

Thus, at the time of independence national unity seemed essential, not only to confront the tasks of economic development but counter internal subversion and external attacks. Chiefs and Native Authorities (NAs) were an embodiment of these twin threats. As noted in the last post, NAs and their treasuries had become quite powerful prior to independence , spawning the emergence of a new “boma class” that was principally seen by many rural dwellers as beneficiaries of colonial rule. And whilst it is correct to observe that the "boma class" and NAs, were broadly supportive of the independence struggle their continuous allegiance to the colonial state generated deep suspicions, which were probably justified. In the eyes of many Zambian politicians the role played by the NAs was typically one which restrained the nationalist movement. They saw the local administration a function of the colonial state and the chieftaincy as an anachronistic vestige of the old Northern Rhodesia that had no place in the new Zambia political landscape. Simply put, NAs' powers had to be curtailed because the loyalty of chiefs to the UNIP government was questionable.

The economic arguments for reform appeared strong. Zambia had inherited an inefficient and fragmented administrative structure: a diffuse collection of government departments enjoying a large measure of autonomy and only loosely controlled by any central, coordinating body, whether bureaucratic or political. The immediate task for the government was how to transform the inherited structure of provincial administration - the focal point of the colonial system of government - into an instrument of economic development. The challenge for the government was how to design a system that achieved their stated economic objectives, but also allowed the party to reassert its authority and minimise future imbalances of political power.

The government’s preferred method was to abolish the old system of provincial and district government, and replace it with a new, more limited structure. From government’s perspective this reformed provincial and district government arrangement was intended to coordinate and implement government policies and provide a link between government and the new structure of party power, in the process wrestling power from the Chiefs to the ruling party. The aim was to take forward Zambianisation of the new institutions without without indigenisation. To that effect, the NAs and local administration were stripped of most of its predecessor's functions, which were distributed among central government ministries and their agencies, as follows:

  • The Local Courts Department of the Ministry of Justice took over the reorganization and running of the old Native Authority courts.
  • Responsibility for law and order was devolved on the police, although local authorities retained a small force of constables to assist in the enforcement of council bye-laws.
  • The Ministry of Local Government became responsible for supervising the rural local authorities through its own cadre of local government officers.
  • The other important functions of NAs such as responsibility for agriculture, conservation and primary education, were passed onto to Central Government.

In short, the reforms streamlined the local system, but also led to the centralisation of responsibility. That in itself is not unusual, but it is interesting that central government assumed responsibility for certain functions that appear could have been performed locally e.g. conservation. There’s also the wider question of whether by eliminating Chiefs from administrative responsibility they ended up removing the people’s ownership of the development process. It might be argued that at that time many people associated themselves on tribal lines, and a coherent approach to development probably required significant involvement of chiefs in the day to day administration of affairs, with gradual reduction of their influence over time. Clearly for the government of the day, this was not a concern, probably because they had already concluded that the interests of the people and chiefs were not always aligned, or a mechanism could not easily be developed that created positive incentives for chiefs to act in peoples' interests.

The new changes to local administration caused some disquiet among chiefs. In the successive years, partly due to pressure from chiefs and partly due to political imperatives, some attempts were made to placate traditional leaders. Four areas can be readily identified as significant in shaping the relationship between traditional authorities and the State.

First, chiefs are formally recognised in Zambian law through two separate legislation:

  • The Chiefs Act (1965) defines a chief as a person who is recognised by the President under the provisions of the Act as the Litunga of Western Province, a Paramount Chief, Senior Chief, Chief or Sub-Chief or a person who is appointed as Deputy Chief. The Chiefs Act also empowers the President with the ability to withdraw recognition of Chiefs. In practice this does not mean someone stops being a chief (see Masebo’s clarification in 1995), but it does mean that the said chief would not enjoy certain privileges. These include withdraw of “subsidies” set out under the Chiefs Act, as well as other entitlements such as subsidised vehicle loans. For their part, chiefs have a responsibility to maintain public order in their area of influence. It requires them “to preserve the public peace in his area and to take reasonable measures to quell any riot, affray or similar disorder which may occur in that area”.
  • The Zambian Constitution, since 1965 has always contained provision for chieftaincy. The current constitution, amended in 1996, specifically defines the institution of chief as “a corporation sole with perpetual succession and with capacity to sue and be sued and to hold assets or properties in trust for itself and the peoples concerned”, it also makes references to the Chiefs Act (1965) in terms of defining who might be recognised as chief.

Secondly, the loss of administrative power following the abolition of NAs continues to be partially been offset at the local level by countervailing legislation. As the political imperatives changed towards “single party participatory democracy”, further political reforms were undertaken. At the local level, the Development of Villages and Registration Act (1971) was aimed at getting chiefs more involved in the economic development of areas through formal registration of villages and its inhabitants; the establishment of Village Productivity Committees, and; establishment of Ward Councils and Ward Development Committees. Chiefs also may, at any time, within their area attend a meeting of the Productivity Committee, the Ward Council or the Ward Development Committee and address the respective members on any subject conducive to the well-being of the villagers in the area. The Act is still in force, with some minor amendments in 1994.

These provisions are reinforced by the Local Government Act (1995), which provides for representation of chiefs at the council level. Under Act, the composition of local council shall include, “two representatives of the Chiefs, appointed by all the Chiefs in the district”. However, chiefs are forbidden to hold Mayoral offices, perhaps to ensure that they remain non-partisan in their activities. More on this issue in later blog on chiefs as agents of political change.

Taken together the Local Government Act (1995) and the Development and Registration of Villages Act (1971) provides the main institutional framework on how chiefs are supposed to be integrated in development at the local level. Many including President Mwanawasa have note the “impracticality” of the current framework, especially the Development and Registration of Villages Act which was clearly developed in accordance with the One Party State ethos.

Perhaps a fundamental point to emphasise is that previous legislation has missed a fairly basic point. The incentives for chiefs to get involved in development also appears weak. Its clearly one thing to give chiefs a right to get involved in local discussions and planning, its quite another thing to ensure that their participation is meaningful and generate positive social returns. If the current government wants to involve chiefs in development, it clearly needs to focus on how it can shape their incentives much more strongly than previous governments have done, and as we shall see as we go through this series, that's no easy task, but that is where policy thinking needs to begin.

Thirdly, chiefs continue to retain significant de-facto power over land. Zambia inherited four categories of land in 1964: State Land (formerly Crown Land); Freehold Land; Reserves and Trust Land. But this changed after independence, when chiefs were relieved of their de jure responsibilities for land allocation. The Land (Conversion of Titles) Act (1975), vested all land in Zambia in the hands of the President, to be held by him in perpetuity on behalf of the people of Zambia. Freehold land held by commercial farmers was converted into leaseholds for 100 years and unutilised tracts of land were taken over by the state. Freehold titles in residential areas were similarly treated. All sales of land per se (excepting the developments on the land such as buildings, farm infrastructure, etc.) were prohibited.

However, in spite of these legislative changes, chiefs’ de facto position remained broadly unchanged as they were not replaced by effective structures. Indeed, in 1985, partly to gain favour with the chiefs and partly in recognition of their custodianship of customary law and rights, government decided that the chiefs ought to be formally consulted when customary land was being granted for leasehold purposes. These powers are confirmed by the Lands Act (1995), which continues to be the substantive land law in place. A significant concession considering customary land accounts for 94% of the land, giving chiefs significant amount of influence. This power is often leveraged through the way chiefs allocate land.

Historically, chiefs did not allot the land directly to their subjects who used it. Rather, land was allocated to sub-chiefs who in turn allotted shares to village headmen. The headman then allotted land to heads of subsections or heads of families and they distributed the land to their dependants. Each of the persons granted land in this way was therefore sort of secure in his rights and could not be expropriated without fault. He could transmit his rights to heirs, but could not transfer them to anyone else without the permission of his seniors. If rights are vacated they rest in the next senior in the hierarchy. In many parts of Zambia, this practice continues but increasingly, with the lure of cash from “foreign investors”, have led chiefs to more direct allotment. The lure of men in brief cases has clearly turned out to be too hard for the existing system to resist. Why let the headman take the bait when you can do it yourself?

Another by product of the increasing lucrative nature of land has increased the attractive of chieftainship and the desire for some chiefs to go beyond their existing boundaries. Significant succession disputes have developed, with anyone with a hint of royal connection seeking to be a chief. We’ll examine these issues in later post on chiefs as agents of change. It suffices to say here that the current power struggles among chiefs reflect the de-facto power that the Land Act (1995) confers, and the lack of clear territorial boundaries among chiefdoms.

The government of course would argue that it’s precisely for this reason why the Lands Act (1995) still vests all land in the President who is required to give consent to a person who wishes to sell, transfer or assign any land. These powers which are delegated to the Commissioner of Lands are meant to act as a natural break on irrational behaviour from chiefs.

In addition, to deal with the problem of investors, the Land Act permits the President to alienate land to a non-Zambian who is a permanent resident and to those non-Zambians who are investors within the meaning of the Investment Act 1993. Through this mechanism it is hoped that chiefs would be more shielded from “foreign investors” by making it easy for foreign investors to approach the government directly. The practice of course is different, and many foreign investors continue to go through chiefs to get land (interesting to contrast this with mineral exploration rights which are granted through the Ministry of Mines, with chiefs only knowing about it when a would be prospector knocks on the doors of the palace with a prospecting licence for the whole area - the incentives to the mining industry to get government permission first rather than the chiefs' is clearly strong with mining issues!).

Successive Zambian governments have always struggled over the role of the chiefs in land administration and a great deal of ambiguity surrounds their current status. For their part chiefs (and many of their supporters) argue that far from leveraging de-facto power, chiefs are the victims. Many argue that chiefs are not well informed about the law and there are many widespread reported incidents of ‘land grabbing’ by government officials. To complicate matters, it appears if customary land is leased and for some reason is repossessed, it no longer falls under the jurisdiction of the chief. Thus it would seem that once land is granted in leasehold, all customary rights to that land are extinguished and so is the authority of the chief over that land.

As it turns out, things might soon get worse for chiefs with
the new plans to repossess land to explore for oil. A proposed petroleum exploration and production bill presented to parliament this week for adoption says government will as a first step grant exploration licences to investors in areas where analysis of soil samples suggest the presence of oil. The government will then proceed to grant the investors petroleum development and production licenses :

"The entire property (oil blocks)... and control over petroleum and accompanying substances, in whatever physical state, located in any land in Zambia is hereby vested exclusively in the president on behalf of the state. .where the president considers that any land is required to secure the development or utilization of the petroleum resources of Zambia, the president may compulsorily acquire such land."

These powers appear more extensive than those granted under the Lands Act (1995), as they do not specifically require prior agreement from chiefs.

Finally, chiefs retain some advisory role at the national level in the House of Chiefs. The House of Chiefs has the remit as an advisory body to the Government on traditional, customary and any other matters referred to it by the President. In all appearances very similar to House of Lords in UK, but in substance no more powerful a smaller part of a weak government ministry. The House of Chiefs consists of 27 members over a three-year-term rotating membership. It has no legislative function: it may consider bills but not block their passage. Perhaps not surprising considering that the house of chiefs sits within the Department of Local Government and Housing, something that has been questioned even by chiefs themselves. And just in case you wondering, as “perfect civil servants” according to a recent change in the constitution chiefs supposed to remain non partisan. “A person shall not, while remaining a Chief, join or participate in partisan politics”, says the 1996 amendment, primarily designed to bar influential chiefs who had political aspirations at the time.

So rather than independent body to provide advice, the representatives in the House of Chiefs are more like civil servants directly under the control of a government Ministry. They are there to give legitimacy to the argument that “government consults traditional leaders”. It’s much worse than this of course, because the House of Chiefs comes with significant spend from tax payers’ money. Chiefs get paid for sitting on the House of Chiefs in the same way that MPs do, which has led many people, including chiefs to question its value for money. It’s fair to say, that in its current role, the House of Chiefs is a gross waste of tax payers’ money, whose only sole purpose appears to be a tool for any incumbent government to capture chiefs in the country for especially at election time and placating them for lost powers of pre 1964.

The general picture therefore is one in which the role of chiefs in independent Zambia have been an outcome of political expedience rather than design. The Zambian political system has not figured out where chiefs could be usefully employed. But this failure is not just of politicians but also of the Zambian intellectual community, which has so often to consider the appropriate relationship of chiefs and traditional development.

In light of the above discussion, what lessons can we learn from this as we take forward independent assessment of traditional authorities and development? Three things come mind:

  • First, the political struggle has left inefficient systems in place that does enough to placate both sides but generate costs directly and indirect to society. At the national level, chiefs continue to occupy a poor value for money position in the House of Chiefs. At the local level, the Development and Registration of Villages Act continues to provide an ineffective mechanism for integrating chiefs in development. Understanding the constraints both mechanisms currently impose on national development is critical in the path towards successful reform.
  • Secondly, the incentives for political systems to reform how chiefs are integrated in development appear weak. Whilst it is true that successive governments have struggled to reform, that struggle is partly a combination of difficulty of reform and the lack of incentives. Chiefs currently do just fine in an inefficient position that remains wholly subservient to the government at the nation level. Any type of reform, whether reducing their powers or increasing their influence would have to come from pressure from outside. Zambian intellectuals have a significant role to play in illustrating the trade-offs associated with those position, and civil society can do much to push for that change.
  • Finally, land reform cannot be ignored. Until Zambia reaches a position where its land policy has been whole figured out, we’ll always struggle with balancing the competing needs in the nation. In an era of increasing foreign direct investment, it becomes critical to ensure that a framework is put in place that guarantees land security for many inhabitants of our villages while ensuring that people benefit from additional local investment. A new social contract on land between the people and government is necessary is long overdue.

In the next three posts, we’ll turn our attention to explore three ways - political, social and economic - in which the chieftaincy has been positive or negative agents of change in Zambia and any lessons we can draw from that. To allow a more fertile discussion of the issues raised in each post, I am allowing atleast some time between the parts. A full list of the topics which are being covered in this series can be found here.

4 comments:

  1. In short, the reforms streamlined the local system, but also led to the centralisation of responsibility. That in itself is not unusual, but it is interesting that central government assumed responsibility for certain functions that appear could have been performed locally e.g. conservation. There’s also the wider question of whether by eliminating Chiefs from administrative responsibility they ended up removing the people’s ownership of the development process

    The weird thing is that nobody seemed to worry about the people. National despotism versus local despotism is the only choice.

    And of course both "sides" (well, i don't know if they were sides but you know what I mean) pretend to "speak for the people" but would never ever let the system be designed in a way that allows the people to give their opinion.

    Clearly for the government of the day, this was not a concern, probably because they had already concluded that the interests of the people and chiefs were not always aligned

    But did anyone bother checking ? I mean clearly the interests of the chiefs and the people are not always aligned but the same could be said for the central government.

    It's weird, and sad.


    The Zambian political system has not figured out where chiefs could be usefully employed.

    May be the framing of the question has something to do with it. They don't have to be employed. And it's possible that there's no way they could be usefully employed.





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    I also see that you don't list the possibility of self-serving misallocation or repression as part of the weaknesses of a system that let chiefs allocate land.

    ReplyDelete
  2. Nobody worries about the people!

    If the people have no recourse to an organised civil society or academia as was the time at independence, no one was going to worry about them.

    In the end it was a fight among two competiting elites.

    I still think that even now that remains the case. Thats why it will be interesting to contrast how the power of chiefs now compares to civil society, church bodies, who are also fighting for change sometimes in different directions.

    But what has struck me as we continue to discuss this issue is not only the lack of political incentives to effect change but also the lack of intellectual leadership to address these complex issues, and there are complex!

    And of course "courage" is also part of it. I mean it takes as much courage to stand up and offer a critique that should see reduction in the power of chiefs over land as it takes to offer a critique that sees reduction of the power of the state at the local level in favour of a system that further rebalances that towards traditional leadership in non-land related issues.

    In terms of phrasing the analytical question - I agree as we discussed last time an option appraisal has to ask "do we need chiefs anymore", and "if so, in what form?" and "for what purpose?"

    Thats the exciting part!!!!!

    "I also see that you don't list the possibility of self-serving misallocation or repression as part of the weaknesses of a system that let chiefs allocate land."

    The negative impacts of a chief led allocation are plenty (though the benefits are there too). I am hoping to address those issues in the post "Chiefs as positive / negative agents of economic change". Here i had focused, perhaps too narrowly to keep the post short, on the institutional relationship between chiefs and the state.

    ReplyDelete
  3. And of course "courage" is also part of it. I mean it takes as much courage to stand up and offer a critique that should see reduction in the power of chiefs over land as it takes to offer a critique that sees reduction of the power of the state at the local level in favour of a system that further rebalances that towards traditional leadership in non-land related issues.

    Yup and it takes even more courage to get out or the either or framework and wonder if people should have the right to decide.

    In terms of phrasing the analytical question - I agree as we discussed last time an option appraisal has to ask "do we need chiefs anymore", and "if so, in what form?" and "for what purpose?"

    I'm being picky here, but why should we ask if we need them BEFORE we ask for what purpose and form ?
    I mean, doesn't asking that question first in a way suggest that the decision about needing them needs to be done before asking in what form and for what purpose ? And that would be an emotionnal decision.

    The negative impacts of a chief led allocation are plenty (though the benefits are there too). I am hoping to address those issues in the post "Chiefs as positive / negative agents of economic change". Here i had focused, perhaps too narrowly to keep the post short, on the institutional relationship between chiefs and the state.

    oh, got you.

    You need to write one about the relationship between chiefs and their subjects too.

    ReplyDelete
  4. "I'm being picky here, but why should we ask if we need them BEFORE we ask for what purpose and form ?"

    Yes it is an iterative process.

    "You need to write one about the relationship between chiefs and their subjects too."

    Yes I'll cover that under the "social" theme.

    ReplyDelete

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